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For one Freud has pointed to the sexual, and indeed the homoerotic, origins of political authority. He studied totemism and sought to locate the origins of the group, publishing "Totem and Taboo" in 1913. Although this is a very debatable work on his part, he did maintain in his later works that paternal proscription of sexual relations with the women of the clan passes to exogamy through homoerotic bonding. Freud locates the origins of the sons' collective organization, their ability to challenge the father's sexual monopoly, in "the homosexual feelings and activities which probably manifested themselves during the time of their banishment." The father's imposition of heterosexual austerities on his sons pushes them into mutual erotic identification, "into group psychology." After killing the primal father, the sons agree that all the clan's women would be denied them. In "Totem and Taboo" Freud made homoerotics into a substitution for heteroerotics, one standing at the origin of the first social contract, the sons' renunciation of the women of the clan as sensuous objects, and their conversion into sexual property to be exhanged exogamously. If exogamous heterosexuality is an original consequence of social organization, endogamous homosexuality is its original source. He never wavered on this foundational basis of modern social organization. Indeed in "Group Psychology and the Analysis of Ego" Freud makes heterosexual desire into an enemy of social organization, whereas "desexualized, sublimated homosexual love for other, which springs from work in common" is a "civilizing factor." There is no room for woman as a sexual object, he writes, in the great artificial groups of society. The implication is, of course, that there is a place for men as sexual objects. "It seems certain," he writes, "that homosexual love is far more compatible with group ties, even when it takes the shape of uninhibited sexual impulsion..." If in his mythico-history he makes the homoerotics of the rother clan the mediation between the primal horde and exogamous patriarchy, in his clinical studies he makes homoerotics integral to the formation of the male individual ego, to masculine identification, and to the psychic operation of authority more generally.

Paternal identification also transmutes a homosexual object-choice, one that is at the heart of sociality. Just like the totemic clan the individual subject is formed through bodily representation. In "Ego and Id," he argues that the self - the ego - is first figured through an imagined body, a sexed morphological imaginary. The imagined body in whose bounded image ego formation takes place during the "mirror stage" has a sex. The male self is both formed and sexed as a resolution of an inhabitation of the bodily form of paternal authority, an outside which is in us, but not of us, but the condition for our being. This homoerotic loss initiates the ego as a perceptual object, as a container for reflexively turned, unavowable erotic desire and sadistic rage at its loss and unhabitatibility. That desire is both refused and retained in a melancholic gender identification, an ungrievable loss. Men want to have the femininity they can never be and want to be the masculinity they can never have. The habitable space of gender is grounded in an uninhabitable space of sex. Paternal identification solves not one, but two problems in this sexual economy. Group formation likewise operates through paternal identification, which, like his murder, is enabled through homoerotic solidarity among the sons. Immediately after explaining in "Group Psychology" that the introjected paternal object is a substitute for the libidinal object tie with the woman, Freud launches into the genesis of male homosexuality, the boy's failure to give up the mother as a cathected object, the "negative" Oedipal complex, the transformation of the male ego on the model of the female. Boy becomes girl mirroring the way in which he has the man, through the matrilineal totem, becoming woman. Group formation is a quintessentially masculine, yet involves men being womanly.

Freud makes homosocial energy the basis of solidarity in complex groups and locates the origin of the social in a renunciation of heterosexual desire. He derives the experience of consubstantiality of totem and man from a fleshy family, from the mother-child bond and the son's deferred identification with the father. Durkheim, in contrast, derives consubstantiality from the experience of a wider social, a representation of embodied oneness with other men. Freud's is an imaginary resolution to a scarce heterosexual economy, while Durkheim's is an imaginary expression of a fulfilled homosocial congress. In point of fact, Freud's clinical theory of individual development is more consistent with Durkheim's account of totemism than is his own historical mythology. In turn, Durkheim, points to the truth, and indeed a liberatory aspect, of Freud's homoerotic theory. For what in Freud is a feminizing, violent subordination to masculine hierarchy, is, in Durkheim, a masculinizing, non-violent, non-hierarchical assimilation. Freud eroticizes power; Durkheim does not. Both Durkheim and Freud make somatics into a constituent of semiosis, an immanent relation between individual and collective bodies, as metaphor, mechanics, and energitics of collective representation. Is it possible that the establishment of the state is itself a sexual act, a double separation of two sexes, woman and man, heterosexual and homosexual, that the state not only has a sex, but is a sex?

Freud's "Totem and Taboo" was one of the more controversial additions to the literature of religious theory. The two major hypotheses of the work are the parallel between ontogenetic and phylogenetic evolution, and the primal horde parricide. The first hypothesis has rarely been taken seriously. The second, although never verified with anthropological evidence, has generated further hypotheses based upon its value as a symbolic representation rather than an actual occurrence. It has been suggested that the primal horde parricide hypothesis possesses characteristics similar to those of most social contract theories. "Totem and Taboo" can be considered a kind of social contract, although it has never been thought of this way. "Totem and Taboo" can be seen as comparable to Rousseau's "Social Contract," in which human nature, politics, myth and mathematics merge. Implicitly "Totem and Taboo" contains a novel theory of the political development of society.

I hope you have heard of unicorns. One could believe that unicorns are actual biological phenomena -- that unicorns are real in the same way horses are real. Or one could believe that unicorns are creations of the human mind, imaginary creatures whose characteristics are therefore wholly a product of our assumptions about those same characteristics. Now imagine a social practice that requires persons to act as if they sincerely believe there actually are independent facts of the matter regarding unicorns -- facts not dependent on human beliefs -- and indeed routinely requires these people to assert the existence of such facts. Yet suppose this practice also requires that on certain occasions those who engage in the practice claim no such independent facts concerning the status of unicorns exist because, after all, "everyone knows" unicorns are merely products of the human mind. We could anticipate that many of the participants in this practice will develop a sort of double consciousness about unicorns, one in which they will both affirm and deny -- and in which they will in a sense both believe and not believe -- that unicorns are actual or imaginary creatures, depending on the context in which such affirmation or denial, and belief or absence of belief, is deemed appropriate.

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Such is the ordinary mental condition of the modern American lawyer. The modern lawyer, and especially the modern judge and law professor, must continually practice a sort of "as if" jurisprudence, within the context of which the lawyer both knows and doesn't know that most important legal facts are facts only to the extent we believe them to be legal facts. Various strategies are then employed to deal with the intense cognitive dissonance that characterizes this condition. A common one among practicing lawyers is to simply ignore the dissonance -- to treat it as someone else's problem. That someone is, of course, whatever decision maker is precluded from employing the same cognitive strategy by virtue of the decision maker's decisional responsibilites.